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Playing Chicken Roulette

Imagine that your local government makes it a crime to engage in an activity that you believe to be constitutionally protected — like possessing a handgun in your home for self-defense. Imagine further that the weight of legal scholarship, from liberals and conservatives alike, holds that the Second Amendment secures an individual right to keep and bear arms. Too bad if you live in Washington, D.C., where you may be faced with a Hobson’s choice. You can forego possessing a gun for self-defense, and perhaps suffer personal injury. Or you can defy the law, illegally own a gun, use it to defend yourself, then risk arrest, prosecution, fine, or even incarceration when D.C. authorities investigate your “crime.”

Ordinarily, citizens can avoid the horns of that dilemma. They can go to court, convince a judge that they’ll be prosecuted if they break the law, and get the court to decide in advance whether the statute is constitutional. But D.C. plays by a somewhat different set of rules. There, the federal courts take a much narrower view of who has judicial “standing” to bring a lawsuit. In a 1997 case, Navegar v. United States, the U.S. Court of Appeals for the D.C. Circuit said that manufacturers of so-called assault weapons could not challenge a 1994 ban on such weapons unless the statute named a specific firearm that the manufacturer produced. In other words, simply identifying a firearm by characteristics, such as magazine size, wasn’t deemed sufficient to constitute a real and imminent threat to prosecute companies that made weapons of that general type.

In February of this year, the D.C. Circuit applied the Navegar doctrine to deny standing to the plaintiffs in Seegars v. Ashcroft, a Second Amendment challenge to the city’s ban on handguns and other operable firearms. The court held that general threats of prosecution by D.C. are not adequate to confer standing, and no Seegars plaintiff had been exposed to a specific, individualized threat. Although the court acknowledged that the statute barring the plaintiffs from possessing firearms might implicate a constitutionally protected interest, and that plaintiffs were sincere in their intention to violate the statute, still the court found that they did not demonstrate a sufficiently credible risk of prosecution.

Of course, there is much to be debated about such a narrow doctrine. Suppose, for example, the 1994 statute at issue in Navegar had banned all commercial firearms, not just “assault weapons,” without naming any particular weapon. Would the court have denied legal standing to every gun-maker who intended to enter the commercial market merely because no specific weapons were named? Not likely. In effect, however, that is what the court does when it rejects standing for every would-be handgun owner in Washington, D.C. who is not individually threatened with prosecution.

Notably, even Navegar granted standing to some firearms manufacturers if the challenged statute had targeted their product by name. But in D.C., the government prohibits all pistols and all functional long-arms, without exception. So the firearms that the Seegars plaintiffs owned (or intended to purchase) were incontrovertibly covered by the D.C. ordinance. In that sense, the D.C. gun ban goes far beyond the statute for which limited standing was approved in Navegar.

Fortunately, the D.C. Circuit will have one more bite at the standing apple. Parker v. District of Columbia, another Second Amendment challenge to the city’s gun ban, is now before the court. Parker is factually distinguishable from Seegars in a several important respects:

First, the six plaintiffs in Parker were personally and unambiguously threatened with prosecution by D.C. — both in the trial court during oral argument and by the Mayor’s official spokesperson, as quoted in the press.

Second, D.C. never raised standing as an issue until told to do so by the trial judge. Nor did D.C.’s prominent friends-of-the-court — the Violence Policy Center and the Brady Center to Prevent Gun Violence — raise standing in their extensive briefing. Most likely, they believed the city’s announced intent to prosecute the Parker plaintiffs was enough to confer standing even under the strict guidelines of Navegar.

Third, the trial judge ordered supplemental briefing on the standing question, but then proceeded to issue an opinion on the merits without even mentioning standing. Fourth, counsel for Parker filed 34 separate assertions of material facts, which D.C. was invited to dispute. The key assertion that D.C. officials “actively enforce” the gun ban was never disputed, and thus admitted.

It would seem, therefore, that Navegar’s exacting standing requirement — a credible and specific threat of prosecution — is amply satisfied in Parker. Indeed, the first threat to prosecute the Parker plaintiffs appeared on the front page of the Washington Times just two days after Parker was filed. According to the news report, Mayor Anthony A. Williams’ office said the city would not budge. “The last thing this city needs is more handguns,” said the Mayor’s official spokesman, Tony Bullock. He added, “You’re not going to see any will on the part of this mayor to relax the gun laws in the District.” “We have to maintain the deterrent effect of the gun laws.” The mayor’s office now claims that it was merely “stating a general policy that the District intends to enforce its weapons laws.” But that characterization of the statement ignores its context. The city’s “general policy” was not front page news in the morning papers. The Parker lawsuit, filed two days earlier, was. That lawsuit, and the desire of the six Parker plaintiffs to possess proscribed firearms, is what prompted the Washington Times story, “Residents Challenge District’s Gun Ban.”

Later, in response to a direct question by the District Court at oral argument, counsel for D.C. stated once again that the Parker plaintiffs would be prosecuted for violating the challenged statutes:

THE COURT: “The city is not going to essentially grant immunity to these people. If they go out and take steps to possess firearms, they’ll be prosecuted, I assume. They’re not going to get a free ride because they’re a plaintiff in this case, are they?”

D.C. COUNSEL: “No, and I think that Your Honor is correct, but I don’t think the fact that if, in fact, they break the law and we would enforce the law that they’re breaking, that that necessarily confers automatic standing on them in this case.”

Three of the Parker plaintiffs were present in the courtroom to hear the city’s attorney corroborate that they would, in fact, be prosecuted if they were to possess functional firearms within their homes. D.C.’s threat did not represent new policy. It reflected the policy that existed when Parker was filed. The plaintiffs were always justified in fearing that they would be prosecuted. But were there any doubt on that score, D.C.’s straightforward admission at oral argument surely confirmed the threat.

In hindsight, the Mayor’s office might have been more circumspect in speaking with the press, and D.C. counsel might wish to have responded differently to the court’s questions about prosecuting the Parker plaintiffs. Maybe counsel would now say, “If these plaintiffs break the law, they could be prosecuted. But whether they’re actually prosecuted depends on a number of variables. We hope and intend to enforce all of our laws. Still, I am not prepared to speculate about the likelihood that these particular plaintiffs will get a free ride.” But that was not the answer. The answer was “No” to immunity, and “Your Honor is correct” in response to the court’s observation that “if they go out and take steps to possess firearms, they’ll be prosecuted.”

In Washington, D.C., six Parker plaintiffs want to be able to defend themselves in their own residences. Parker is not about machine guns and assault weapons on the street. It’s about ordinary, garden-variety handguns, in the home for self-defense. No handgun can be registered in D.C. Even pistols registered prior to the District’s 1976 ban cannot be carried from room to room in the home without a license, which is never granted. All firearms in the home, including rifles and shotguns, must be unloaded and either disassembled or bound by a trigger lock. Essentially, no one in the District can possess a functional firearm. And the law applies not just to unfit persons like felons, minors, or the mentally incompetent, but across-the-board to ordinary, honest, responsible citizens like the Parker plaintiffs.

It’s time for the D.C. Circuit, and perhaps the U.S. Supreme Court, to tell us whether the city’s total ban on all functional weapons withstands scrutiny under the Second Amendment. No one should have to break the law in order to vindicate a constitutional right. The D.C. Circuit put the principle succinctly in Seegars: “Public policy should encourage a person aggrieved by the laws he considers unconstitutional to seek a declaratory judgment against the [government], all the while complying with the challenged law, rather than to deliberately break the law and take his chances in the ensuing suit or prosecution.” Now the D.C. Circuit has an opportunity to implement that crystalline principle by granting standing in Parker.

Robert A. Levy is senior fellow in constitutional studies at the Cato Institute. Alan Gura is a Fairfax, Virginia Attorney with Gura & Day, LLC. Gura and Levy are co-counsel to the plaintiffs in Parker v. District of Columbia.